Tuesday, 20 October, 2020

Constitution: Expectations And Reality


Mukti Rijal


The federal constitution of Nepal was promulgated on Sept 20, 2015. It has been already five years since the constitution was enacted and promulgated to herald a new era in the polity of the country. Through this constitution, Nepal has instituted both republicanism and federalism at one go. It is something that is achieved by a nation to usher democratic transformation and development meaningfully with a distinct break from the past.

Distinct Character
In this context, it can be said that Nepal has set one of the most important political and constitutional precedents. It has the distinction to have these democratic achievements institutionalised in the constitution. When we talk of the important features of the federal constitution of Nepal, we can state categorically that federalism, republicanism, fundamental human rights, empowered local government through devolutionary arrangement , constitutional commissions to promote and protect the rights of the marginalized communities and groups can be named some of them .
The fundamental rights guaranteed by the constitution of Nepal comprise the essential principles of the international human rights treaties. The important provisions in the constitution include basically most of the civil and political rights , economic, social and cultural rights elaborated in the UN human rights covenants . It is relevant to note that Nepal has enacted at least sixteen separate human rights legislation to promote, protect and enforce human rights in accordance with the provision of the constitution . Moreover, separate constitutional commissions have been envisaged in the constitution for the protection of the human rights of the marginalized groups and communities. However, these commissions instituted by the constitution are yet to be made fully functional since the members and officials for these commissions have not been named by the government .
The first democratic election was held in 2017 under the new constitution which led to the formation of federal, state and local governments. An important characteristic of the Nepalese federal polity has been that it has given preeminent position to the local governments endowing them with substantive roles and functions as mentioned in the schedule 8 of the constitution. Twenty-two major functions have been allocated to the local government in the constitution. These functions have been further clarified and unbundled by the federal government . The unbundled category of functions add to two hundred in number which the local governments have to carry out for service delivery, democracy and development.
Among the key sectors health, education, agriculture and rural infrastructure are some of the key areas of functions that are clearly allocated to the local government The 753 local governments can license schools, recruit teachers, determine salary and pay them, conduct examinations and even formulate their own curricula as long as it is within the national curriculum framework. However, the federal government is yet to formulate the law to set national standards related to education.
In the absence of such a law, the federal government continues to oversee school education as it used to happen when the country was under the unitary system. An unit of the federal government called local education coordination and development operates at the district that administers school education on behalf of the federal government . It is necessary to keep such units for smooth management of the transition and initial adjustment in school governance , but such units should not be maintained for long to intervene in the affairs of the local government jurisdictions. Local governments should also carry out basic requisite functions with a view to warrant they can take over their roles and functions effectively from the federal government units .

Devolution of Power
Similarly, local governments have been barred from overseeing basic health services in the absence of a federal health law. Establishment and operation of local level hospitals and other health facilities, as well as the formulation of policies and plans for basic health, would come under their jurisdictions once there was an umbrella law.
It clearly shows that people holding the reins of the federal government seem to be making every effort to delay the devolution of power and keep the authority in Sighadurbar .Otherwise, there is no reason why the federal laws shouldn’t be prepared even five years after the promulgation of the constitution.
The federal parliament can endorse laws swiftly if there is the need. The responsibility of formulating these laws lies with the respective ministries of the federal government, they can table in the Parliament after the Cabinet’s approval.
The functioning of the States (Pradesh) is also prejudiced and hampered .Although seven states have been created according to the constitution , they are alleged of not being effective to deliver outcomes and results according to the constitutional vision .
It should be considered that federalism doesn’t mean just carving out and putting states in place .Firstly , they should be empowered and enabled through enactment of the appropriate laws and legislations in line with the spirit of federalism . Secondly, states should be provided with adequate and capable human resources. According to the constitution, states can form their own public service commissions but this has not been possible in the absence of enabling federal legislation . Thirdly, states should be allocated adequate resources to implement their projects and development activities.

Cooperative Federalism
However, it is very disconcerting to note that states have not been able to use and spend resources made available to them by the federal government. For implementation of the constitutional provision, bashing the federal government for not devolving enough authority can be sensible if the available authority and resources are properly utilized and effectively delivered .
The sub-national governments need to be progressive and effective enough through performance and results to show the way to the federal government. The constitution envisions cooperative federalism based on mutual collaboration, cooperation and respect among three tiers of the government. It is, therefore, necessary to have constant dialogue and communication among the three tiers of government to implement the constitutional provision related to democratic governance and federalism in Nepal .

(Rijal is former executive editor of The Rising Nepal) 

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